The Marijuana Conversation: Questions Employers Are Asking

Over the next serval months, we will be diving into the National Council on Compensation Insurance (NCCI) Marijuana Conversation series aimed at exploring the issues surrounding marijuana’s impact on workers compensation stakeholders. “The Marijuana Conversation: Questions Employers Are Asking” is the second installment. 

As discussed in NCCI’s previous Marijuana Conversation - “Questions Workers Compensation Insurers Are Asking” - medical marijuana is currently legal in 29 states, as well as Washington, DC. It’s also legal for recreational use in eight states and Washington, DC. However, marijuana is still illegal at the federal level and is classified as a Schedule I drug under the federal Controlled Substances Act.

Like insurers, employers face a host of questions regarding the growing legalization of marijuana, what impact it may have on the workplace, and how it may relate to an employer’s workers compensation coverage.

Below are three key questions employers are asking as marijuana becomes legal across the nation.

What is the impact on workers compensation when an employee is injured on the job while under the influence of marijuana?

Employers want to know how legalizing marijuana will impact workplace safety and, ultimately, their workers compensation insurance. Employers have questions about how their workers compensation coverage is impacted if an employee legally using marijuana is injured on the job and is found under the influence of the substance when the accident occurred.

The majority of jurisdictions (47) have workers compensation laws that address this issue and, in some form, restrict workers compensation benefits when a worker’s injury is attributed to intoxication or drug use. Of those, 40 states are able to completely deny all benefits (100% of medical and income benefits) and a handful of states deny income benefits, but allow injured employees to receive medical benefits.

A few states allow benefit reductions based on intoxication and/or drug use. Laws in 18 jurisdictions contain language addressing “presumptions,” where the intoxication/drug use is presumed to be the cause of the accident if the employee tests positive. In all but a few of those states, the employee can rebut the presumption with certain evidence. And 13 jurisdictions deny benefits if employees refuse to participate in drug and/or alcohol tests.

Some states have explicitly addressed the use of medical marijuana on the job. For example, Montana’s workers compensation law says that an employee is not eligible for workers compensation benefits if the employee’s use of medical marijuana is the major contributing cause of the injury or the occupational disease.

However, questions remain as to what constitutes impairment from marijuana and how to determine if an injured worker was under the influence of the substance at the time of the accident. Since marijuana can stay in a person’s system for a period of time, it’s possible that the injured worker could test positive for the substance but not be impaired at the time of the accident.

How do employers handle issues like administering a drug-free workplace and establishing hiring practices when employees are legally using medical marijuana under state law?

As marijuana has become permissible for medical use in more than half of the states, there is increased discussion about using medical marijuana to treat workplace injuries. Employers may be wondering: Does an employee’s legal use of medical marijuana impact whether an employer must allow use of the drug in the workplace? What are the implications if the employee’s medical marijuana use is to treat a work-related condition?

Many employers have drug-free workplace policies, but to date, no state has explicitly placed restrictions on them.

For example, the Colorado Supreme Court ruled that employers can terminate workers for using marijuana outside of work hours because it is unlawful under federal law, even though the drug is legal in the state. In addition, federal district courts in New Mexico and Washington have ruled in favor of employers’ drug-free workplace policies. These cases involved employees who were legally using medical marijuana under state law outside of working hours.

On the legislative side, Florida enacted legislation this year implementing the state’s new medical marijuana law that passed in 2016. The Florida legislation says that the new medical marijuana law does not limit an employer’s ability to enforce a drug-free workplace program or policy.

It is unclear whether this will change if the use of medical marijuana to treat workers compensation injuries becomes commonplace.

Has there been any recent state activity that may further complicate matters for employers in determining how to handle the marijuana issue?

As noted above, no state has explicitly placed restrictions on employer drug-free workplace policies. However, nine states (Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, and Rhode Island) have antidiscrimination or reasonable accommodation provisions as part of their medical marijuana laws that may impact how employers enforce such policies.

These antidiscrimination or reasonable accommodation provisions may raise questions as to whether employers can act when an employee or potential employee is a medical marijuana subscriber or has tested positive for marijuana. Further, because many state marijuana laws are relatively new, there may not be much guidance for employers to follow when implementing drug-related workplace rules.

Two recent cases in New England highlight the complexity of the relationship between marijuana and the workplace. In July 2017, Massachusetts’ highest court ruled that an employee who was terminated after testing positive for marijuana could proceed with a claim against her employer based on the state’s disability discrimination statute. Then, one month later, in August 2017, a Connecticut federal district court ruled that a job applicant could bring a lawsuit against her potential employer for discrimination under Connecticut’s medical marijuana law when the employer rescinded a job offer based on the applicant’s positive drug test for marijuana during the preemployment drug screening.

While these decisions are generating a lot of attention right now, it remains to be seen whether the courts will ultimately rule in favor of employers’ drug-free workplace policies. No doubt, employers will pay close attention as these cases work their way through the judicial system.

Conclusion

Though medical marijuana is legal in the majority of states, employers are left with questions about its use in the workplace and the potential impact on drug-free workplace policies and workplace safety. It remains to be seen how states and courts will address these issues going forward, but employers will pay close attention as developments unfold. As marijuana-related laws continue to develop, employers will likely navigate a state-by-state patchwork of laws for guidance, unless the federal government steps in to provide clarity.

Stay tuned for our next edition of The Marijuana Conversation, which will focus on questions employees are asking.

Click Here to review first installment: "The Marijuana Conversation: Questions Workers Compensation Insurers Are Asking"

Dan Zeiler

dan@zeiler.com

708.597.5900 x134 

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